Alexander on the Origins of Obscenity Exceptionalism

James R. Alexander, University of Pittsburgh at Johnstown, has posted Chasing Echoes of Obscenity Exceptionalism in Copyright: Recent Swarm Cases, which is forthcoming in volume 17 of the Chicago-Kent Journal of Intellectual Property (2018):

Recent district court rulings regarding copyright violations using BitTorrent file-sharing protocols to illegally download pornographic films have been numerous and largely procedural. But some have casually included language challenging the established doctrine of content neutrality in copyright, noting that obscenity exceptionalism might still be within the court’s policy discretion. This article traces these recent rulings and finds little substantive argument on behalf of exceptionalism other than its long-time understanding under common law, now abandoned. It also examines the critical early nineteenth century common law rulings considered seminal in establishing content exceptionalism in copyright and finds that current court references to them in swarm cases appear willing to accept what was believed to be their governing principles without consideration of the cautions expressed by earlier courts.

The article draws upon Professor Alexander’s considerable research on Lord Eldon’s opinion in Walcot v. Walker (Ch. 1802).